Can the unauthorized surgery be medical malpractice? 11 Answers as of May 28, 2013

04/29/11 knee replacement had complications Dr. broke my leg in two places. What kind of rehab would be recommended for a setback of such nature? 8/11 fellowship Dr. said knee cap was not placed tendon was too short, return in a year 10/22/11 manipulation didn't work. 12/15/12 back surgery, bone marrow for back bone with an additional knee manipulation that was unauthorized and not scheduled whatsoever showed me pictures that he bent my knee. Was not able to do physical therapy and did not heal in my back or knee whatsoever. I can't work, exercise, do any daily duties without pain. Pain that is chronic. I have no quality of life. 8/01/12 fellowship dr and 2nd opinion dr. said my knee could never be fixed and I was not able to be surgically fixed. Knee was to damaged for any type of surgery. 09/12 filled for disability. I am currently looking for care and help no dr. wants to see me and think I am a drug seeker. I have been referred to pain management. Am I in any category for help with my situation?

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Never having done orthopedic surgery, myself, I would go to an expert for advice. I suspect that you have not done orthopedic surgery either, so you should go to an expert for advice. If a qualified expert says that the first doctor made a mistake, then the question is whether or not it can be fixed. If it can, then do it. If it cannot, then get it fixed as best as possible, and speak to a medical malpractice lawyer. Sometimes, despite the doctor doing everything absolutely perfectly, things go bad. That does NOT mean that the doctor is guilty of malpractice.

You have a lot of problems. Not clear what they all are or why. You would need to get all, that is ALL your medical records and have them reviewed by an orthopedic doctor and see if he thinks there is any malpractice that will normally cost you a smart fee for him to do that. and if he thinks so, it will be necessary to find a doctor to testify for you in court, all very hard to do and all very expensive you do not seem to have a good handle on what has been done and one problem will be for you to understand everything that has been done and why. There is no guarantee in the surgery business and sometimes things just don't work out even if the doctors do a good job.

In order to prove a medical malpractice case, a claimant must prove a failure to conform to accepted practice, resulting in an injury. A bad result is not enough. You will need to get copies of ALL of your medical records and have a doctor review them; if he/she is willing to testify that the hospital failed to conform to accepted practice, then you have a case. But even then, you have to prove how much worse you are as a result of the malpractice. These cases are difficult and expensive to prove and they do not settle out of court. So unless you have catastrophic injuries, it does not make financial sense to go forward even if malpractice was committed.

Truly and unequivocally unauthorized surgery can be the basis of a lawsuit but it might be labelled something other than malpractice, along with a malpractice claim. Sometimes though the patient impliedly gives consent. Also hospitals usually obtain your signature on a very broad release of liability which would have to be overcome in any lawsuit. I think you may have a valid claim but lots more facts need to be gathered. If it's not against the rules of this site, I suggest you call my office for an appointment sometime fairly soon, if you'd like us to evaluate your claim with you. Our law firm, like many others, retains a medico-legal expert to assist us in evaluating a case for malpractice. His review costs $500.00, and is worth it. But that is a cost, rather than a legal fee, so it falls on you to pay.

If the knee manipulation truly was "unauthorized and not scheduled", it sounds as if the physician did not obtain "informed consent" to perform the procedure. And yes, that would be actionable on your part.

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